McWilliams Mediation: Knowledgeable



If you (or your spouse) are unable to support yourself through employment or from the income you earn from the assets you retain, you (or your spouse) may qualify for maintenance. You can mutually agree on the maintenance amount and duration, or a Judge may order it if (a) you lack sufficient property to provide for your own reasonable support and (b) you are unable to support yourself through appropriate employment (“the threshold test”).

On January 1, 2014, the Colorado Legislature enacted advisory maintenance guidelines to determine the amount and duration of maintenance for those cases in which one person meets the threshold test and both parties have combined gross incomes of less than $360,000. If your combined gross incomes exceed $360,000, all relevant factors will be considered.
The amount of maintenance under the guidelines is determined by calculating 40% of the monthly adjusted gross income of the higher earning party minus 50% of the monthly adjusted gross income of the lower earning party. However, the guideline amount when added to the recipient’s gross income may not exceed 40% of the combined monthly adjusted gross income of both parties.

As stated, the maintenance guidelines are advisory, and a court must also consider all relevant factors including the needs of the receiving party, the ability of the other party to pay, the income that might be received from property, the health and age of the parties, the ability to work (including employability and additional training that may be needed), potential income, and the length of the marriage.

Generally, unless you otherwise agree, maintenance terminates upon a specific date, your death, your spouse’s death, or the remarriage of the party receiving the maintenance. The new guidelines provide a formula for the duration of maintenance, and they apply only to marriages that have lasted for 3 years and not more than 20. If you have been married for more than 20 years, a court may award maintenance for a specific or indefinite term, but the term cannot be less that of a 20 year marriage (10 years) without making specific findings. If you have been married for less than 3 years, the court may award maintenance after considering your circumstances and those of your spouse.

Unless you and your spouse agree otherwise, maintenance is modifiable. You can agree to maintenance that has a fixed amount and a fixed duration, and that is known as contractual maintenance. Unless you specifically elect out of the relevant provisions of the Internal Revenue Code, maintenance is generally taxable to the recipient and deductible by the party who pays it.

The issue of maintenance is complex so, take your time when making decisions and be certain that you have all the information you need to make those decisions.